Citation Nr: 0010510
Decision Date: 04/20/00 Archive Date: 04/28/00
DOCKET NO. 98-03 416 A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Evaluation of bilateral trachoma residuals with chronic
conjunctivitis currently evaluated as 10 percent.
2. Whether the August 1980 and June 1986 RO decisions
denying service connection for trachomatous conjunctivitis
were clearly and unmistakably erroneous.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Veteran and his spouse
ATTORNEY FOR THE BOARD
C. L. Mason, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1942 to
December 1945.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from June 1991 and April 1997 decisions of the
Nashville, Tennessee Department of Veterans Affairs (VA)
Regional Office (RO). In June 1991, the RO determined that
new and material evidence had not been submitted to reopen
the veteran's claim for service connection for an eye
disability. The veteran appealed the case to the Board. In
November 1992, the Board REMANDED the case to the RO for
additional development. The case was returned to the Board
in December 1992. In August 1993, the case was returned to
the RO on account of a Departmentwide stay necessitated by
the United States Court of Appeals for Veterans Claims
(Court) decision in Smith v. Principi, 3 Vet. App. 378 (1992)
regarding application of 38 C.F.R. § 3.105(a) to prior Board
decisions. In Smith v. Brown, 35 F. 3d. 1516 (Fed. Cir.
1994), the United States Court of Appeals for the Federal
Circuit held that review authority under 38 C.F.R. § 3.105(a)
related only to review of RO decisions and not those of the
Board. The case was returned to the Board in January 1995.
In September 1995, the Board again REMANDED the case to the
RO for additional development.
In an April 1997 decision, the RO determined that the August
1980 rating decision denying service connection of
trachomatous conjunctivitis was not clearly and unmistakably
erroneous. The veteran filed a notice of disagreement. The
case was returned to the Board in 1997. In November 1997,
the Board determined that new and material evidence has been
submitted to reopen the veteran's claim for a bilateral eye
disability, granted service connection for a bilateral eye
disability, and REMANDED the issues of clear and unmistakable
error (CUE) in the 1980 and 1986 RO decisions for procedural
development.
In February 1998, the RO granted service connection for the
bilateral trachoma residuals on the basis of aggravation, and
assigned an initial 10 percent rating. Also in February
1998, the RO issued a statement of the case addressing the
issues of whether the August 1980 and June 1986 rating
decisions denying service connection for trachomatous
conjunctivitis were clearly and unmistakably erroneous. The
veteran submitted a timely VA Form 9 on these issues.
In a May 1998 rating decision, the RO continued the veteran's
10 percent evaluation for bilateral trachoma
residuals/chronic conjunctivitis. The veteran has appealed
this decision. The case has now been returned to the Board.
Finally, the Board notes that the RO, in January 1995,
advised the veteran that his allegation that there was clear
and unmistakable error in the January 1953 rating decision
severing service connection for an eye disorder could not be
adjudicated as the Board had decided this issue in May 1955.
In January 1995, the veteran filed a motion for
reconsideration of a May 1955 Board decision that denied
restoration of service connection for trachomatous
conjunctivitis. The motion was denied in June 1995.
Preliminary review of the record does reveal that the RO
expressly considered referral of the veteran's claim for an
increased evaluation for his bilateral trachomatous
conjunctivitis to the VA Undersecretary for Benefits or the
Director, VA Compensation and Pension Service for the
assignment of an extraschedular rating under 38 C.F.R. §
3.321(b)(1) (1999). That regulation provides that to accord
justice in an exceptional case where the schedular standards
are found to be inadequate, the field station is authorized
to refer the case to the Undersecretary for Benefits or the
Director, VA Compensation and Pension Service for assignment
of an extraschedular evaluation commensurate with the average
earning capacity impairment. The RO determined that the case
did not present such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. The United States Court of Appeals for Veterans
Claims (Court) has held that the Board is precluded by
regulation from assigning an extraschedular rating under 38
C.F.R. § 3.321(b)(1) (1999) in the first instance; however,
the Board is not precluded from raising this question, and in
fact is obligated to liberally read all documents and oral
testimony of record and identify all potential theories of
entitlement to a benefit under the law and regulations.
Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further
held that the Board must address referral under 38 C.F.R. §
3.321(b)(1) only where circumstances are presented which the
Director of VA's Compensation and Pension Service might
consider exceptional or unusual. Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995). Having reviewed the record with these
mandates in mind, the Board finds no basis for further action
on this question. VAOPGCPREC 6-96 (1996).
FINDINGS OF FACT
1. The veteran's bilateral chronic trachomatous
conjunctivitis is manifested by complaints of chronic
discharge interfering with visual acuity and objective
evidence of slight scarring in the upper tarsal plate of the
right and left eyes and dry conjunctiva with fluorescein
staining.
2. An August 1980 rating decision, which the veteran did not
appeal, denied service connection for chronic trachomatous
conjunctivitis on the basis that new and material evidence
had not been submitted.
3. Neither the veteran nor his representative have
identified and the Board has not found any undebatable error
of fact or law in the August 1980 rating decision denying
service connection for chronic trachomatous conjunctivitis on
the basis that new and material evidence had not been
submitted.
4. The evidence on file supported the August 1980 decision
at that time.
5. A June 1986 rating decision, which the veteran did not
appeal, denied service connection for chronic trachomatous
conjunctivitis on the basis that new and material evidence
had not been submitted.
6. Neither the veteran nor his representative have
identified and the Board has not found any undebatable error
of fact or law in the June 1986 rating decision denying
service connection for chronic trachomatous conjunctivitis on
the basis that new and material evidence had not been
submitted.
7. The evidence on file supported the June 1986 decision at
that time.
CONCLUSIONS OF LAW
1. Bilateral trachomatous conjunctivitis is 30 percent
disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp.
1999); 38 C.F.R. § 4.1-4.14, 4.22, 4.84a, Diagnostic Code
6017 (1999).
2. There is no clear and unmistakable error in the August
1980 rating decision denying service connection for chronic
trachomatous conjunctivitis. 38 U.S.C.A. §§ 5107, 7105 (West
1991); 38 C.F.R. § 3.105(a) (1999).
3. There is no clear and unmistakable error in the June 1986
rating decision denying service connection for chronic
trachomatous conjunctivitis. 38 U.S.C.A. §§ 5107, 7105 (West
1991); 38 C.F.R. § 3.105(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased evaluation
The veteran contends that his bilateral trachomatous
conjunctivitis should be assigned a higher evaluation. The
Board finds that the claim for a higher evaluation is well
grounded within the meaning of 38 U.S.C.A. § 5107(a)(West
1991). Where the claimant is awarded service connection for
a disability and subsequently appeals the RO's initial
assignment of an evaluation for the disability, the claim
continues to be well grounded as long as the rating schedule
provides for a higher evaluation and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 225 (1995).
As noted previously, this issue resulted from the RO's
February 1998 grant of service connection for residuals of
bilateral trachoma including chronic conjunctivitis. The RO
decision was the result of the Board's November 1997 grant of
service connection for a bilateral eye disability based on
new and material evidence indicating that the veteran's
preexisting eye disorder was aggravated during service. The
veteran reopened his claim in May 1991. Accordingly, the
Board has considered the issue raised by the Court in
Fenderson v. West, 12 Vet. App. 119 (1999). The veteran is
not prejudiced by the naming of this issue. The Board has
not dismissed any issue and the law and regulations governing
the evaluation of disabilities is the same regardless of how
the issue has been phrased. In reaching the subsequent
determinations, the Board has considered whether staged
ratings should be assigned.
In a March 1991 letter, R.S.L., M.D., stated that in addition
to his glaucoma with chronic iritis of the right eye, the
veteran was experiencing difficulties with vascularization of
his cornea superior which Dr. L. opined may be related to his
old trachomatous damage. At the time of the letter, the
veteran's visual acuity was 20/50 -2 in the right eye and
20/25 -2 in the left eye.
Private medical records from April 1990 to September 1995
show that the veteran was seen on multiple occasions
complaining of pain and foreign body sensation in eyes.
Evaluations reveal corneal scarring superiorly with
blepharitis and swollen conjunctiva. Diagnoses include
follicular conjunctivitis, acute iritis on the right eye,
retinal hole of the right eye, blepharoconjunctivitis, and
chronic ocular discomfort secondary to dry eye syndrome. It
was noted that the veteran was also treated for open angle
glaucoma and cataracts.
An October 1991 notation indicates that the veteran's visual
acuity was 20/100 (corrected to 20/40) in the right eye and
20/30 +2 in the left eye. In December 1991, his visual
acuity was 20/80 -2 in the right eye and 20/30 +2 in the
left. Thereafter, until 1995, the veteran's visual acuity
ranged from 20/25 to 20/30 in the left eye and 20/25 to 20/40
in the right eye. A September 1995 visual acuity check
revealed 20/60 -1 in the right eye and 20/40 in the left eye.
At a March 1996 VA examination, the examiner stated that the
veteran's visual acuity in the right eye was count fingers at
20 feet and J14 near. This improved to 20/25 at distance and
J4 at near. His uncorrected vision of his left eye was 20/80
at distance and less than J14 near, which corrected to 20/40
at distance and J6 at near. There was mild dermatochalasis
on all four eyelids. Conjunctiva were clear. Slit lamp
evaluation revealed scarring superiorly of the cornea with
deep blood vessel invasion. Multiple concretions were
present on the upper tarsal plate in the left eye. The
diagnosis included pseudophakia in both eyes, chronic
conjunctivitis left eye worse than right, and glaucoma by
history.
As noted previously, the Board, in a November 1997 decision,
found that new and material evidence has been submitted that
raised the reasonable possibility that the veteran's
bilateral trachoma was aggravated during service and thus,
granted service connection. The RO, in a February 1998
rating decision, implemented this decision and granted
service connection for bilateral trachoma residuals to
include chronic conjunctivitis and assigned a 10 percent
evaluation under Diagnostic Codes 6017-6018 effective from
May 1991, the date of the veteran's reopened claim.
In a March 1998 VA examination, the veteran's visual acuity
was 20/400 at distance and less than J14 at near in the right
eye with correction to 20/60 +2 and J4. The left eye visual
acuity was 20/250 at distance and less than J14 at near with
correction to 20/60 -2 and J4. Moderate dermatochalasis of
his eyelids was noted. Right cornea scarring which extended
further than cataract wound was noted and there was slight
scarring of the conjunctiva in the upper tarsal plate on the
left. There was also mild scarring of the upper tarsal plate
near the medial canthus of the upper lid of the right eye.
No discharge was present. The conjunctivas were dry with
fluorescein stain, but no persistent stains of the
conjunctivae or cornea were present. There was no evidence
of entropion. The diagnoses included chronic conjunctivitis,
pseudophakia, and chronic open angle glaucoma. The examiner
noted that the scarring observed on the upper tarsal plate
can be part of the chronic conjunctivitis and can also be
seen in disease such as trachoma and that the veteran had
some scarring of the upper cornea in the right eye which
would be consistent with a prior diagnosis of trachoma. The
examiner stated that there were no other complications such
as entropion which might be associated with trachoma.
In a July 1998 VA examination report, the examiner noted that
the veteran complained of chronic discharge which
occasionally interfered with his visual acuity. The examiner
stated that the current examination was unchanged from the
previous March 1998 examination. The examiner opined that
the discharge and associated symptoms may be the result of
the veteran's trachoma. The examiner further stated that
neither the veteran's glaucoma or cataracts were associated
with the veteran's trachoma.
Disability evaluations are determined by comparing the
veteran's current symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. See 38 U.S.C.A. §
1155 (West 1991); 38 C.F.R. Part 4 (1999). In making its
determination, the Board analyzes the extent to which a
service-connected disability adversely affects a veteran's
ability to function under the ordinary conditions of daily
life, and bases the assigned rating, as far as practicable,
on the average impairment of earning capacity in civil
occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower rating will be assigned. See
38 C.F.R. § 4.7.
In cases involving aggravation by active service, the rating
will reflect only the degree of disability over and above the
degree existing at the time of entrance into the active
service, whether the particular condition was noted at the
time of entrance into the active service, or it is determined
upon the evidence of record to have existed at that time. It
is necessary therefore, in all cases of this character to
deduct from the present degree of disability the degree, if
ascertainable, of the disability existing at the time of
entrance into active service, in terms of the rating
schedule, except that if the disability is total (100
percent) no deduction will be made. The
resulting difference will be recorded on the rating sheet.
If the degree of disability at the time of entrance into the
service is not ascertainable in terms of the schedule, no
deduction will be made. 38 C.F.R. § 4.22.
Conjunctivitis is evaluated under 38 C.F.R. § 4.84a,
Diagnostic Codes 6017 and 6018. Under both Diagnostic Codes,
a noncompensable evaluation is assigned when conjunctivitis
is healed with no residuals, or an evaluation can be assigned
based on residuals. A 10 percent evaluation can be assigned
under Diagnostic Code 6018 if conjunctivitis is active, with
objective symptoms, while a 30 percent evaluation can be
assigned under Diagnostic Code 6017 when chronic trachomatous
conjunctivitis is active, it is rated for impairment of
visual acuity, with a minimum rating of 30 percent while
there is active pathology. 38 C.F.R. § 4.84a, Diagnostic
Codes 6017 and 6018 (1999).
The ratings for central visual acuity impairment set forth in
Table V of 38 C.F.R. § 4.84a, Diagnostic Codes 6071-6079
(1999). According to the regulations, the best distant
vision obtainable after the best correction will be the basis
of the rating. 38 C.F.R. § 4.75 (1999). Under Diagnostic
Codes 6076-6079, a 30 percent evaluation requires visual
acuity of 20/70 in both eyes; visual acuity of 20/70 in one
eye and 20/100 in the other; visual acuity of 20/50 in one
eye and 20/200 in the other; and 15/200 in one eye and 20/50
in the other.
Upon review of the evidence of record, the Board finds that
the degree of disability at the time of entrance into the
service is ascertainable in terms of the schedule, but is
also noncompensable. According to the service medical
records, the veteran's corrected visual acuity was 20/30
bilaterally when he was examined for service entry. He also
had had recurrent pre- service trachoma infections, the last
episode having been about four years before he entered the
service. Residual scarring of the conjunctiva and tarsus,
upper eyelids, was present prior to service. From this
evidence, it appears that the pre- existing conjunctivitis
had not been active for some years prior to service entry.
Further, any residual impairment in central visual acuity due
to scarring secondary to the conjunctivitis was
noncompensable disabling under the criteria for rating
impairment in visual acuity.
After resolving all reasonable doubt in favor of the veteran,
the evidence supports a grant of a 30 percent evaluation for
bilateral trachomatous conjunctivitis. The current evidence
clearly shows that the veteran has complained of chronic
discharge which occasionally interfered with his visual
acuity. Private medical records show multiple diagnosis of
conjunctivitis from 1991 to 1995 with corneal scarring
related to trachoma. VA examinations revealed moderate
dermatochalasis of the eyelids, corneal scarring on the
right, scarring of the conjunctiva in the upper tarsal plate
on the left, mild scarring of the upper tarsal plate near the
medial canthus of the upper lid of the right eye, and dry
conjunctiva. The diagnoses included chronic conjunctivitis
and the examiner attributed the veteran's symptoms to
trachoma.
As the veteran's corrected distant vision is 20/60 +2 in the
right eye and 20/60 -2 in the left eye, he does not meet the
criteria for a 30 percent evaluation under Diagnostic Code
6078. However, as there appears to findings of active
pathology of chronic trachomatous conjunctivitis, the veteran
is entitled to a minimum evaluation of 30 percent under
Diagnostic Code 6017. Therefore, deducting the
noncompensable degree of disability existing when he entered
the service, the Board concludes that the evidence is more
consistent with the criteria contemplated for assignment of a
30 percent evaluation under Diagnostic Code 6017.
II. CUE
The veteran has asserted that the August 1980 and June 1986
decisions by the RO denying entitlement to service connection
for chronic trachomatous conjunctivitis were clearly
erroneous. The veteran and his representative have argued
that such decisions should be reversed because they were
based on clear and unmistakable error.
Absent the filing of a notice of disagreement within one year
of the date of mailing of the notification of the initial
review and determination of a veteran's claim and the
subsequent filing of a timely substantive appeal, a rating
determination is final and is not subject to revision upon
the same factual basis except upon a finding of clear and
unmistakable error. 38 U.S.C.A. § 7105 (West 1991); 38
C.F.R. §§ 3.105, 20.302, 20.1103 (1999).
Previous determinations which are final and binding,
including decisions of service connection, will be accepted
as correct in the absence of clear and unmistakable error.
Where evidence establishes such error, the prior decision
will be reversed or amended. 38 U.S.C.A. § 5112(b); 38 C.F.R.
§ 3.105 (1999). The Court has held that for there to be a
valid claim of clear and unmistakable error, there must have
been an error in the prior adjudication of the claim.
Russell v. Principi, 3 Vet. App. 310, 313 (1992). Either the
correct facts, as they were known at the time, were not
before the adjudicator or the statutory or regulatory
provisions extant at the time were improperly applied. Id.
Clear and unmistakable error is error that is
undebatable, so that it can be said that reasonable minds
could only conclude that the original decision was fatally
flawed at the time it was made. Id. at 313-314. To
establish clear and unmistakable error, it must be further
demonstrated that the claimed error, when called to the
attention of later reviewers, compels a different conclusion
to which reasonable minds could not differ. See Fugo v.
Brown, 6 Vet. App. 40 (1993), en banc review denied, 6 Vet.
App. 162 (1994). The Court, in Luallen v. Brown, 8 Vet. App.
92, 94 (1995), stated that "the claimant must assert more
than mere disagreement as to how the facts were weighed and
evaluated." The Court noted that in order to raise CUE,
"there must be some degree of specificity as to what the
alleged error is." Luallen v. Brown, 8 Vet. App. 92, 94
(1995), citing Fugo v. Brown, 6 Vet. App. 40, 44 (1993).
In this instance, the file does not show and the veteran has
not indicated any evidence that the correct facts were not
before the adjudicators at the time of the August 1980 or
June 1986 rating decisions. The Board's independent review
has not disclosed the incorrect application of law or
regulations. The veteran has not clearly identified and the
Board does not find undebatable error in the either the
August 1980 or June 1986 decisions denying service connection
for chronic trachomatous conjunctivitis on the basis of no
presentation of new and material evidence. In essence, the
veteran argues that the RO did not properly weigh and
evaluate the evidence. A claim that the evidence was
improperly weighed or that the decision was wrong does not
constitute a CUE claim. Phillips v. Brown, 10 Vet. App. 25
(1997). Accordingly, the veteran's claims of clear and
unmistakable error in the August 1980 and the June 1986
rating decisions are denied.
ORDER
A 30 percent evaluation for bilateral trachomatous
conjunctivitis is granted, subject to the applicable laws and
regulations governing the award of monetary benefits.
The veteran's claims of clear and unmistakable error in the
August 1980 and June 1986 rating decisions are denied.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
- 5 -
- 1 -